Justice Oliver Wendell Holmes is often said to have been the greatest American judge. He was conservative in the older sense of the term, faithful to precedent and history, but he welcomed adaptations of the law to new realities. His thought and character stand as a rebuke to today's activists of the Right. Some reflections on the Constitution, originalism and the Supreme Court.

Friday, September 27, 2013

Pardon me for going on about this, but the situation of the Afghani translator, aside from the tragedy that is unfolding, tells us a lot about what is going wrong just now. One has to get pretty far down into the weeds to see the legal problems he faces, but the problems are common to many immigrants and deportees. The US embassy has revoked his visa, and the US federal courts have decided that they have no jurisdiction to review such "consular" decisions. They have also held that someone outside the US who is not a US citizen has no constitutional rights. But this man served for nine years (nine years!) with our combat troops, apparently with distinction, and if he had enlisted would be eligible for citizenship. Well, he didn't and he's not. But the Constitution grants the rights of minimal due process to all "persons" (not just citizens) under US control, and if the detainees at Guantanamo can get a hearing, why should not a man like this Afghani hero? I summon the ghost of Justice Holmes to argue on his behalf.

There are a great many people, including some thousands of US citizens, who have been deported and therefore have no further access to our judicial system, one of the many defects of our archaic, dysfunctional, federal immigration and citizenship laws. Judging by the facts that have been made public, any sort of hearing conducted with even minimal fairness would exonerate the man, and most likely many thousands more who are in similar positions. But don't wait for Congress to act. The President can't do much about the broken immigration system, but this is one problem he can address. He just needs to impose some modest rationality and fairness on American consulates and embassies.

I spent the next few days calling the US embassy in Kabul and State Department to no avail. After total silence, they finally told me that his visa was revoked for reasons they could not legally address. I investigated further and had my worst suspicions confirmed: in the two weeks since the State Department issued his visa, an anonymous "informant" contacted the US government and claimed all sorts of things about Janis. The informant's bogus claims eventually reached an analyst at the National Counter Terrorism Center (NCTC) in Washington DC who promptly put a security hold on Janis' visa, prompting the State Department to revoke it altogether.

It's fairly common for the Taliban to read the US news. I can't help but think that they learned of our successful efforts to secure Janis his visa via the extensive coverage our efforts generated. They used to call our base in Afghanistan and claim all sorts of lies about our interpreters in an attempt to get us to fire them. The Taliban are almost certainly the source of the anonymous tip and now they have more time to hunt him and his family down and kill them.

This is bureaucracy at its worst, but one feels a little sympathy for the embassy officials who face the prospect of Benghazi-style hearings if they catch the attention of Congressional Republicans, who opposed the visa program in the first instance and are unlikely to allow it to be renewed.

Holmes might have something to say about the contemptible handful of billionaires and the frightened Republicans they have in thrall. In a case concerning an Irish bootlegger gang, the Administration used unlawful wiretaps in pursuing them, and a majority of the Court decided to allow the illegally obtained evidence at their trial. Holmes tried to recall them to their sense of duty, and to their oath to the Constitution:

We have to choose, and for my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part.

Holmes always tried to recall us to our duty. The famous phrase, "think not what your country can do for you. . . " is paraphrased from one of his speeches. Would that the irresponsible billionaires and their Congressman would hear this call. A great many immigrants, including that Aghani translator, would be relieved to hear that the call had been answered.

Thursday, September 26, 2013

The last week in September is Banned Books Week, sponsored by the American Library Association--a reminder that most attempts to suppress books are made in libraries, especially public libraries. Such efforts at oppression are still often made but are rarely successful owing to the profound strength of our constitutional system. What is at stake is much more than the rights of authors and publishers, the principle we defend is the right of the public to hear every voice. Justice Holmes is a kind of patron saint of our Freedom to Read, largely because of his eloquent opinions in a series of Supreme Court cases during and after the First World War. Those cases and opinions are explained in my book Honorable Justice,which has a new preface for the eBook edition released this month, in which I point out Holmes's continuing importance for our freedom to read. The privilege afforded by the Constitution to authors and publishers rested on something fundamental, Holmes thought, a principle that lay beneath the whole structure of constitutional law. He believed that the freedom to argue protects us from violence, and freedom of the press protects us from an oppressive government. Freedom to read, he seemed to say, even more than the freedom to write, is fundamental to the rule of law. My personal popgun doesn't protect me from the greatest military power in history; successful rebellions today begin with peaceful demonstrations broadcast to all the world; they begin with poetry and rap music and books. It is the right of the public to hear, much more than the right of the author to speak, that protects our constitutional system. In my book I quoted Holmes's most famous opinion, his dissent in Abrams v. United States, decided in 1919. What offended Holmes most deeply was the prosecution of political dissidents, whose beliefs were examined and then punished:

[T]he defendants are to be made to suffer not for what the indictment alleges but for the [socialist] creed that they avow--a creed that I believe to be the creed of ignorance and immaturity when honestly held, as I see no reason to doubt it was held here, but which, although made the subject of examination at the trial, no one has a right even to consider when dealing with the charges before the Court.

[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good to be desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution.

When Mikhail Gorbachev began to dismantle the totalitarian rule of the Communist Party of the Soviet Union, the first rights that were asserted were the rights to criticize the Party and the government. In an address to an invited audience of American lawyers, of whom I was one, he said that his aim was to establish a government founded on truth. He was telling us what we wanted to hear, perhaps, but he did seem to understand the rule of law that we had been invited to explain.

Wednesday, September 25, 2013

Wikipedia's article-of-the-day today is about the late Anthony Lewis's celebrated book, Freedom for the Thought that We Hate, whose title is a quote from an opinion by Holmes. Lewis was a long-time columnist and legal affairs reporter for The New York Times, and w also taught at the Harvard Law School. Between his teaching and his celebrated journalism Lewis did much to establish Justice Holmes's reputation as the father of modern freedom of speech and of the press. Lewis and I exchanged letters, both privately and in print, concerning Holmes' contribution to First Amendment jurisprudence, about which we disagreed. There is no question that Holmes's dissenting opinions--like the one that Lewis quoted in his title--are of great continuing importance. Our disagreement concerned an earlier set of opinions that Holmes wrote for a unanimous Court, during the First Word War. In those opinions, he used the famous phrase "clear and present danger" to describe speech that could be punished. Even political speech, the Court decided, could be punished if in the circumstances in which it was uttered it posed a clear and present danger of causing actual crimes to be committed. Holmes's famous example was the false cry of "fire" in a theater. Lewis didn't care for those earlier opinions, which are still often cited, and wanted to praise only the later dissents in which Holmes passionately championed the principle of freedom of thought and expression. I thought the two sets of opinions were parts of a single overall philosophy, while Lewis claimed that Holmes had changed his mind, and abandoned those earlier view.

This might not seem to matter much, except to biographers. What might have some larger significance today, however, is that in all of his opinions concerning freedom of expression, Holmes did not quote and barely mentioned the First Amendment. He was not an originalist, and did think the text of the Constitution was a kind of fixed code. He argued rather that the Constitution rested on core principles which were part of the fabric of the law. His opinions celebrating the First Freedom rest on those principles, of ewhich freedom of expression was assuredly one. As he said in his dissent in United States v. Schwimmer,

[I]if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.

Not the First Amendment: the Constitution itself. The Constitution as a whole, the very rule of law, rested on this principle: peaceful competition of ideas and interests, in place of violence and warfare.

Wednesday, September 18, 2013

Carlo A Pedrioli has posted an interesting article on the social science research network, in which he says Supreme Court opinions that show fidelity to precedent are expressions of the "Holmesian voice" in constitutional law, taking Holmes as the model of a common-law judge. He contrasts the Holmesian voice with the more activist or result-oriented opinions of Justice Brennan for the Warren Court. He doesn't extend his analysis to consider whether Holmes's common-law jurisprudence stands in opposition to the doctrinaire "textualism" of Scallia et al., which seems equally result-driven.

Tuesday, September 17, 2013

Holmes still speaks to us on important matters, perhaps because he insisted on looking through formal doctrines to see the reality we try to govern. The central pillar of the rule of law, he thought, was the principle of fairness. People charged with crimes, he said, were entitled to a fair hearing, and fairness was to be judged according to the circumstances. Sounds like common sense, but in the famous Leo Frank case a majority of the Court upheld what amounted to a judicial lynching. A majority of the Supreme Court voted to defer to a Georgia jury, which in the presence of a mob convicted a Jewish immigrant of murder (wrongly, as later events proved). Scholars today remind usthat Holmes dissented in that case, and for a time persuaded the Supreme Court to follow him, by saying that "This is not a matter for polite presumptions; we must look facts in the face." The forms were preserved, but the rule of law had been flouted, and Holmes characteristically insisted that it was the duty of the Supreme Court to judge for itself whether a fair trial had been conducted. This briefly became the Supreme Court's principle in habeas corpus cases, where the fairness of state proceedings was in question, but with the recent revival of states' rights in Congress and among a majority of the Supreme Court,we are back to polite fictions; the Court majority once again refuse to face the reality of criminal proceedings in local courts. A similar abandonment of duty is evident in cases concerning the rights of immigrants. The United States Supreme Court declines to revisit past convictions in which the defendant was an immigrant wrongfully deported from the United States because of a guilty plea in a state court, when the plea was entered in ignorance of the likely consequence. The Massachusetts Supreme Court has just announced a contrary doctrine, in effect brushing aside formalities and recognizing its duty to protect the rights of defendants, even those of "criminal aliens."

Tuesday, September 10, 2013

A Missouri Governor is campaigning on behalf of taxes to support schools and other essential functions of government. Why is not Holmes's aphorism a political slogan?

As a Democrat facing a State Legislature with veto-proof Republican majorities, Gov. Jay Nixon of Missouri has not claimed big victories lately. So when he began stumping the state against a deep Republican tax cut that he had vetoed, he might have seemed to be on a political fool’s errand.

Thursday, September 5, 2013

ImmigrationProf has helpful links, a summary of oral arguments Tuesday and video of the arguments before the California Supreme Court, in the case of Dreamer Sergio Garcia, who has applied for admission to the bar. The US takes the position that the federal government's irrational fear of immigrants trumps California's law, under which Mr. Garcia has a right to a law license. Because the hearing addressed the Bar Examiners' recommendation that he be admitted, most of the argument hinged on state versus federal power; but if the California court refuses to admit him, he will have a chance to assert his own rights, which cannot be denied solely because of the irrational animus toward immigrants that the U.S. Congress has expressed.

Tuesday, September 3, 2013

In the case described in the quote below, the Administration is opposing a Dreamer's application for admission to the bar, to which he has a right under California law. The Administration presumably is trying without success to mollify anti-immigrant hostility, but the case gives the courts a chance to emphasize the constitutional rights of immigrants. You need a reason other than irrational fear to deprive someone of their rights: United States v. Schwimer (1928) (Holmes, J. dissenting).

"On May 16, 2012, the Supreme Court issued an order directing the Committee of Bar Examiners to show cause why the court should grant the committee's motion to admit Sergio C. Garcia to the State Bar as a licensed attorney. This question presented by the case is whether an undocumented immigrant who has graduated from law school and passed the California bar examination may be admitted to the California Bar or whether such admission is precluded by any federal statute or for any other reason.
The Committee of Bar Examiners certified his name to the Supreme Court for admission to the State Bar. The bar notified the court of Garcia’s immigration status at the time the motion was filed. The Supreme Court’s order directed the Committee of Bar Examiners and Garcia to file briefs in support of the Committee’s motion and invited others to file amicus curiae briefs in the Supreme Court. The order specifically invited amicus participation by the Attorneys General of California and the United States."